Often I represent physicians or other providers in situations where the facts are not debatable. This occurred in a case where a physician kissed and fondled a patient and admitted everything in a letter to his superior at a clinic. In the letter, the doctor stated that what had done was “reprehensible” and “immoral”.
The event was, in due course, reported to OPMC, and I was retained as the doctor’s attorney. I knew immediately that the physician was going to be found guilty of misconduct and that the only open question was the degree of the penalty. My goal was to have the doctor retain his license and be able to earn a living. I was prepared to accept almost any terms that OPMC would demand as long as my goal was met. Unfortunately, the only resolution that OPMC would accept was a revocation of the doctor’s license. Accordingly, no agreement could be reached and OPMC charged the doctor with misconduct and we were forced to defend the case at a Hearing.
At the Hearing I gave an opening statement and in it I told the panel that my client was guilty of the acts that he was charged with. However, I pointed out that he had an otherwise spotless record and that this very brief, under 20 seconds, lapse in conduct should not result in the revocation of his license. The State took the position that the doctor should not be allowed to practice medicine as he was a sexual predator.
OPMC had the patient testify as the first witness. This patient was homeless, a life long substance abuser and perhaps somewhat mentally retarded. As you might expect, OPMC pointed out that this particular patient was defenseless vis-a-vis the well-educated physician.
The second witness was a physician who, of course, said that my client had committed misconduct. I could hardly disagree in light of the circumstances.
I then producer my client’s hospital supervisor. He testified that he knew my client before and after the event and that my client told him about the incident right after it occurred. He said that in his opinion my client was devastated by his breach of expected conduct. He also said that he was convinced that this was an isolated incident and it would never occur again.
My client testified last and admitted all of the facts saying that this had never happened before in many years of practice and that he was completely remorseful due to his actions.
In summation, I asked the panel members if they had ever done anything in their lives that they wished they could change. Was there ever a breach in judgment that they were sorry for later on. Also, this event took such a short period of time that it certainly could not be said to show a pattern of bad conduct.
The result was that the panel found my client guilty of misconduct and decided that 3 years of probation with appropriate CME courses on boundaries was the correct punishment. The panel also said my client had to work in an institutional setting, which he was doing in any event.
OPMC appealed this decision to the Administrative Review Board (ARB) still trying to revoke the doctor’s license. Thankfully, the ARB allowed the panel’s decision to stand.
So, not all cases are hopeless. Here the goal of allowing the doctor to continue to practice medicine was achieved in the face of some fairly unpleasant facts.
Careful planning can sometimes save the day.